ESR News Blog

Private, Off Duty, and Not Unlawful Conduct Posted without Consent on Internet not Grounds to Terminate Teacher

The boundaries of using the internet for employment decisions was tested in a Michigan case involving the termination of a teacher that was photographed without her consent at an adult party engaged in a simulated sexual act, where students were not present and the conduct was not unlawful.

Although the case is unpublished (which means it cannot be used for precedent) and involves complicated areas of Michigan law concerning the termination of tenured teachers, it provides judicial insight on the use of the internet by employers to make employment decisions.

According to the decision, the teacher:

“…was terminated from her position as a middle school teacher at respondent’s school district after photographs of her engaged in a simulated act of fellatio with a male mannequin appeared on an internet website. The photographs were taken during a combined bachelor/bachelorette party at the “Jobbie Nooner” in the summer of 2005. The photographs were taken without petitioner’s knowledge and were posted on the internet website without her consent. Rumors about the photographs began circulating at petitioner’s school in September 2007, and students gained access to the photographs. At petitioner’s request, the photographs were removed from the website later that month. In the meantime, petitioner was suspended from her teaching position.”

The Court went on to explain that the “Jobbie Nooner” is an annual gathering of boats around Gull Island in Lake St. Clair for a large party.

The teacher was re-instated after appealing to a commission with jurisdiction over the matter. The commission found that:

“…petitioner’s conduct occurred more than two years before she was suspended, was not illegal, occurred at a public event off school grounds, did not involve any school activity, and was not associated with petitioner’s duties as a teacher. Further, the context for the conduct was a bachelor/bachelorette party in which there was no reasonable expectation that children were or might be present, or that any adults who witnessed petitioner’s activity were not willing participants. In addition, there was no evidence that petitioner had mentioned her conduct or attendance at the “Jobbie Nooner” to any students, or that she had advocated the type of conduct in which she was photographed.”

On judicial appeal, the school district argued among other things that the termination was justified because she engaged in lewd behavior contrary to the moral values of the educational and school community, which undermined her moral authority and professional responsibilities as a role model for students.

The court upheld the re-instatement on the basis that:

“…there are no Michigan decisions holding that a teacher’s legal, off-duty, off-premises, conduct not involving students constitutes professional misconduct that renders a teacher unfit to teach. Petitioner’s conduct, while coarse, was not inappropriate for its adult venue. Respondent (the school) , who has the burden of proof, did not come forward with any evidence that children were present or expected to be present at the “Jobbie Nooner.” The conduct itself lasted approximately three seconds. The photographs were taken without petitioner’s knowledge, posted without her consent, and were removed from the website approximately two weeks after they became common knowledge. Students who accessed the website and distributed the photographs did so in violation of the website’s restrictions.”

This case underscores the danger of using internet searches to deny employment based upon lawful, off duty conduct not related to work. In general, an employer must show that the behavior would damage the employer, hurt business interests, or be inconsistent with business needs.

The case also demonstrates the dangers of unauthorized photos being placed on web sites. Here, the teacher did not intend to be photographed nor have pictures put on the web for the world to see.

It is interesting to note that this is a second case where the use of the internet arose in the context of education law. ESR has previously blogged on the case of Stacy the Drunken Pirate, which involved a photograph of off duty conduct by a student teacher. However, in that case, a student teacher not only had arguably inappropriate content on her internet page of her drinking, but she but violated express instructions from the school not to invite students to her internet site and not to make negative comments about her teaching supervisor. In that case, internet conduct was relevant and the student teacher was unable to obtain relief from being terminated from a student teaching position. See: http://www.esrcheck.com/newsletter/archives/January_2009.php#T2